Jurisprudence is the knowledge of the classification of the laws of God, which concern the actions of all responsible Muslims, as obligatory, forbidden, recommendable, disliked, or permissible. These (laws) are derived from the Qur’an and the Sunnah (traditions), and from the evidence the Lawgiver (Muhammad) has established for knowledge of (the laws). The laws evolved from the (whole) of this evidence are called “jurisprudence” (fiqh).
The early Muslims evolved the laws from that evidence, though, unavoidably, they differed in (the interpretation of) it. The evidence is mainly derived from texts. The texts are in Arabic. In many instances, and especially with regard to legal concepts,167 there are celebrated differences among them as to the meaning implicit in the words. Furthermore, the traditions (Sunnah) differ widely in respect of the reliability of the recensions. Their legal contents, as a rule, are contradictory. Therefore, a decision is needed. This makes for differences of opinion. Furthermore, evidence not derived from texts causes (still other) differences of opinion. Then, there are new cases which arise and are not covered by the texts. They are referred by analogy to things that are covered by the texts. All of this serves to stir up unavoidable differences of opinion, and this is why differences of opinion occurred among the early Muslims and the religious leaders after them.
Moreover, not all of the men around Muhammad were qualified to give legal decisions. Not all of them could serve as sources for religious (practice). That was restricted to men who knew the Qur’an and were acquainted with the abrogating and abrogated, the ambiguous and unambiguous verses,168 and with all the rest of the evidence that can be derived from the Qur’an, since they had learned (these matters) from the Prophet directly or from their higher ranking colleagues who had learned it from him. These men, therefore, were called “readers,” that is, men who (were able to) read the Qur’an. Because the Arabs were an illiterate nation, those who were able to read the Qur’an were distinguished by the name of “readers.” Their ability to read was a remarkable thing in those days.
It continued to be that way at the beginning of Islam. Then, the cities of Islam grew, and illiteracy disappeared from among the Arabs because of their constant occupation with the Qur’an. Now the development (of jurisprudence from its sources) took place. Jurisprudence was perfected and came to be a craft and science. The Qur’an readers were no longer called Qur’an readers but jurists and religious scholars.
The jurists developed two different approaches to jurisprudence. One was the use of opinion (reasoning) and analogy. It was represented by the ‘Iraqis. The other was the use of traditions. It was represented by the Hijazis.
As we have stated before,169 few traditions circulated among the ‘Iraqis. Therefore, they made much use of analogy and became skilled in it. That gave them the name of the representatives of opinion (reasoning). Their chief, around whom and whose followers their school centered, was the imam Abu Hanifah. The leader of the Hijazis was Malik b. Anas and, after him, ash-Shafi’i.
Later on, a group of religious scholars disapproved of analogy and rejected its use. They were the Zahirites. They restricted the sources of the law to the texts and the general consensus. They considered obvious analogy and causality suggested by the texts as resting in the texts themselves, because a text that indicates a ratio legis 170 permits legal decision for all the cases covered by (such a kind of reasoning). 171 The leaders of this school were Dawud b. ‘Ali 172 and his son and their followers.
These were the three schools famous among the great mass of Muslims. The ‘Alids invented their own school and had their own jurisprudence. They based it upon their dogma requiring abuse of some of the men around Muhammad, and upon their stated opinion concerning the infallibility of the imams and the inadmissibility of differences in their statements. All these are futile principles. The Kharijites similarly had their own school. The great mass did not care for these (unorthodox) schools, but greatly disapproved of them and abused them. Nothing is known of the opinions of these schools. Their books are not being transmitted. No trace of them can be found except in regions inhabited (by these sectarians). The (legal text) books of the Shi’ah are thus found in Shi’ah countries and wherever Shi’ah dynasties exist, in the West, the East, and in the Yemen. The same applies to the Kharijites. All of them have (legal) writings and books and hold strange opinions on jurisprudence.
The Zahirite school has become extinct today as the result of the extinction of their religious leaders and disapproval of their adherents by the great mass of Muslims. It has survived only in books, which have eternal life.173 Worthless persons occasionally feel obliged to follow this school and study these books in the desire to learn the (Zahirite) system of jurisprudence from them, but they get nowhere and encounter the opposition and disapproval of the great mass of Muslims. In doing so, they often are considered innovators, as they accept knowledge from books for which no key is provided by teachers.174 That was done by Ibn Hazm al-Andalusi; 175 although he occupies a high rank in the expert knowledge of traditions. He turned to the Zahirite school and became skilled in it. He gave his own independent interpretation of their stated opinions. He opposed their leader Dawud and attacked most of the Muslim religious leaders. For that, the scholars took their revenge on him. They greatly vilified his school and completely disregarded his books. It went so far that sale of his books on the market was prohibited. At certain times, they were (even) torn up.
Nothing has remained except the schools of the representatives of opinion (reasoning) in the `Iraq and of the representatives of traditions in the Hijaz.
The leading authority of the `Iraqis, around whom their school centered, was Abu Hanifah an-Nu`man b. Thabit. His place in jurisprudence is unrivaled. This has been attested by persons of his own caliber, in particular, Malik and ash-Shafi’i. The leading authority of the IIijazts was Malik b. Anas al-Asbahi, who held the leading position in Medina. He is distinguished by the fact that he added another source of law to those known to other scholars, namely, the practice of the Medinese. He was of the opinion that by virtue of their religion and traditionalism, the Medinese always necessarily followed each immediately preceding generation of Medinese, in respect of what they cared 176 to do or not to do. The (process would have gone back) to the generation that was in contact with the actions of the Prophet, and they would have learned from him (what to do and not to do). In (Malik’s) opinion, the practice of the Medinese, thus, is basic legal evidence.
Many scholars have thought that the (practice of the Medinese) is (rather) one of the problems of the general consensus. Therefore, they have disapproved of (Malik’s use of) it, because use of the general consensus as a source of law is not restricted to the inhabitants of Medina to the exclusion of other (Muslims), but extends to all Muslims. However, it should be known that general consensus means agreement concerning a religious matter on the strength of independent judgment. Malik did not consider the practice of the Medinese in this light. He considered it in the light of the continuity of personal observation over successive generations, (going) back to the time of the Lawgiver (Muhammad). The necessity of the traditionalism of the Medinese (caused by the fact that they have such excellent models to follow), supports that (attitude). It is true that the problem (of the practice of the Medinese) has been mentioned in the chapter (of legal works) dealing with the general consensus. This is the most appropriate place for it, because both the (practice of the Medinese) and the general consensus are concerned with agreement. However, the agreement of general consensus is the result of independent judgment and opinion (reasoning), in view of the (available) evidence. The agreement of the Medinese, on the other hand, affects their practice in as much as it involves reliance upon personal observation of (the practice of) their predecessors. It would, indeed, have been more appropriate if the problem (of the practice of the Medinese) were mentioned in the chapter on the actions 177 of the Prophet, or in connection with (the topic of) evidence concerning which there are differences of opinion – as, for example, (the use as legal evidence) of the law of the religions preceding us (Islam), the (legal) opinions of men around Muhammad, and (the problems of) praesumptio legis (istishab).178
God gives success.
Malik b. Anas was followed by Muhammad b. Idris al-Muttalibi ash-Shafi’i. He traveled to the ‘Iraq after Malik’s time. He met the followers of the imam Abu Hanifah and learned from them. He combined the approach of the Hijazis with those of the ‘Iraqis. He founded his own school and opposed Malik on many points.
Malik and ash-Shafi’i were followed by Ahmad b. Hanbal. He was one of the highest-ranking hadith scholars.179 His followers studied with those of Abu Hanifah, notwithstanding the abundant knowledge of traditions they themselves possessed. They founded another school.
These four authorities are the ones recognized by tradition in the (Muslim) cities. Tradition-bound people obliterated all other (authorities), and scholars no longer admit any differences of opinion. The technical terminology of the sciences has become very diversified, and there are obstacles preventing people from attaining the level of independent judgment. It is also feared that (the existence of differences of opinion) might affect unqualified people whose opinion (reasoning) and religion could not be trusted. Thus, (scholars) came to profess their inability (to apply independent judgment), and had the people adopt the tradition of the (authorities) mentioned and of the respective group of adherents of each. They forbade one to modify his traditional (allegiance), because that would imply frivolity. All that remained after basic textbooks had been produced in the correct manner, and the continuity of their transmission had been established, was to hand down the respective school traditions and, for each individual adherent, to act in accordance with the traditions of his school. Today, jurisprudence means this, and nothing else.180 The person who would claim independent judgment nowadays would be frustrated and have no adherents.
The Muslims today follow the tradition of one of the four (authorities). The adherents of Ibn Hanbal are few in number.181 Most of them are in Syria and in the ‘Iraq, that is, 182 in Baghdad and environs. They are the people who have the best knowledge of the Sunnah and of the transmission of traditions and 183 prefer them to analogical reasoning as a source of law, as far as possible. They 184 were strong and numerous in Baghdad, until they clashed with the Shi’ah in the territory of (Baghdad). That caused much unrest in Baghdad. It stopped when the Tatars took possession of Baghdad, and was never resumed later on. The majority of Hanbalites are now to be found in Syria.
Abu Hanifah’s adherents today are the ‘Iraqis and the Muslims of India, China, Transoxania, and all the non-Arab (Persian-Turkish) countries. His school had formerly been restricted rather to Baghdad and the ‘Iraq. There had been pupils of his at the court of the ‘Abbasid caliphs. Their writings were numerous and their disputations with the Shafi’ites were frequent. Their ways of dealing with controversial questions 185 were excellent. They made a nice discipline out of (the subject of controversial questions) and developed remarkable ideas in this connection. All that is in the hands of scholars. The Maghrib has some knowledge of it. It was brought there by Judge Ibn al-’Arabi 186 and Abul-Walid al-Baji 187 from their travels.
Ash-Shafi’i has more adherents in Egypt than anywhere else. His school had formerly spread through the ‘Iraq, Khurasan, and Transoxania. The Shafi’ites had shared with the Hanafites the task of giving legal decisions and teaching in all (Muslim) cities. They had many discussion meetings, and the books on controversial questions are full of the various kinds of (Shafi’ite) argumentation. Later on, all this stopped when the eastern countries were wiped out.
When the imam Muhammad b. Idris ash-Shafi’i took up his residence with the ‘Abd-al-Hakam family 188 in Egypt, a number of them 189 studied with him. His pupils in Egypt included al-Buwayti,190 al-Muzani,191 and others. Malikites 192 in Egypt were certain members of the ‘Abd-al-Hakam family,193 Ashhab,194 Ibn al-Qasim,195 Ibn alMawwaz,196 and, further, al-Harith b. Miskin 197 and his family; then, Judge Abu Ishaq b. Sha’ban 198 and his followers. Orthodox jurisprudence was then cut off from Egypt by the appearance of the Shi’ah dynasty. ‘Alid jurisprudence came into use there. All the other (schools with their) scholars were on the point of complete disappearance, when 199 Judge ‘Abd-al-Wahhab 200 came to Egypt from Baghdad at the end of the fourth [tenth] century, because he was in need and had to seek a livelihood. The ‘Ubaydid(-Fatimid) caliphs proceeded 201 to honor him. They advertised his great qualifications, in order to be able to blame the ‘Abbasids for driving out such a religious leader, and showed satisfaction with him. As a result, the Malikite school saw some flourishing in Egypt, until the extremist 202 Shi’ah ‘Ubaydid(-Fatimid) dynasty was wiped out by Salah-ad-din b. Ayyub. That meant the end of ‘Alid jurisprudence in Egypt and the return of orthodox jurisprudence among the Egyptians. The jurisprudence of ash-Shafi’i and his ‘Iraqi followers now flourished (in Egypt). It turned out to be in a better position than before, and was greatly cultivated.203 The book of ar-Rafi’i 204 was imported from the ‘Iraq into Syria and Egypt. Among famous Shaft’ites were Muhyi-ad-din an-Nawawi, one of the champions who had grown up in the shadow of the Ayyubid dynasty in Syria, further, ‘Izz-ad-din b. ‘Abd-as-Salam,205 then, Ibn ar-Raf’ah 206 in Egypt, and Taqi-ad-din b. Daqiqal-’id.207 After the latter two, there was Taqi-ad-din asSubki.208 Finally, (Shafi’ite leadership) was assumed by the present Shaykh of Islam in Egypt, Siraj-ad-din al-Bulqini.209 He is the greatest Shafi’ite in Egypt today and, indeed, the greatest Egyptian religious scholar.
Malik’s school was restricted to Maghribis and Spaniards, even though it was also found among other peoples. However, (Maghribis and Spaniards) very rarely follow other schools. (This situation is explained by the fact that) they mostly traveled to the Hijaz. There, their journey ended. Medina, at that time, was the home of religious scholarship, which spread to the ‘Iraq from there. The ‘Iraq did not lie in the way of (the travels of the Maghribis and the Spaniards). Thus, they restricted themselves to studying with the scholars of Medina, that is, with Malik, the leading Medinese scholar at that time, as with his teachers before him and with his pupils after him. Thus, Maghribis and Spaniards (always) referred to (Malik) and became his adherents and nobody else’s, as the methods of other (authorities) did not reach them. Furthermore, the desert attitude was predominant among Maghribis and Spaniards. They did not care for sedentary culture, such as existed among the ‘Iraqis. Therefore, they were more inclined toward the Hijazis, because the Hijazis also had the desert attitude. Thus, the Malikite school among them always retained its simplicity and was not affected by the refinement and improvement of sedentary culture that took effect in other schools.
The school doctrine of each authority became, among his adherents, a scholarly discipline in its own right. They were no longer in a position to apply independent judgment and analogy. Therefore, they had to make reference to the established principles from the school doctrine of their authority, in order to be able to analyze problems in their context and disentangle them when they got confused. A firmly rooted habit was required to enable a person to undertake such analysis and disentanglement and to apply the school doctrine of his particular authority to those (processes) according to the best of his ability. This habit is (what is meant) at this time by the science of jurisprudence.
All Maghribis are adherents of Malik. His pupils were formerly spread over Egypt and the ‘Iraq. In the ‘Iraq, they were represented by Judge Ismail 210 and his contemporaries, such as Ibn Khuwazmandad,211 Ibn al-Muntab,212 Judge Abu Bakr al-Abhari, 213 Judge Abul-Hasan b. al-Qassar, 214 Judge ‘Abd-al-Wahhab, 215 and their successors. In Egypt, there was Ibn al-Qasim, Ashhab, Ibn ‘Abd-al-Hakam, al-Harith b. Miskin, and their contemporaries. Yahya b. Yahya alLaythi 216 traveled from Spain (to the East) and met Malik and transmitted the Muwatta’ on his authority. He was an important pupil of Malik. Also, ‘Abd-al-Malik b. Habib 217 traveled from Spain (to the East) and studied with Ibn alasim and his contemporaries. He spread the school of Malik in Spain. He wrote a systematic work on it, in the Kitab al-Wadihah. A pupil of his, al-’Utbi,218 wrote the ‘Utbiyah.
Asad b. al-Furat 219 traveled from Ifrigiyah (to the East) and studied first with the followers of Abu Hanifah, but then changed over to the school of Malik. He studied with Ibn al-Qasim all the chapters of jurisprudence and wrote down what he learned. He brought his book back to al-Qayrawan. It was called al-Asadiyah, after Asad b. al-Furat. Sahnun 220 studied it with Asad (himself). He, then, traveled to the East and met Ibn al-Qasim. He studied with him and confronted him with the problems of the Asadiyah. He reconsidered many of them, and Sahnun wrote down his own 221 problems in a systematic work, and stated which of the problems of the Asadiyah he had reconsidered. Ibn al-Qasim and he together wrote to Asad and asked him to delete from the Asadiyah the problems that had been reconsidered (by Ibn al-Qasim and Sahnun) and to accept the book of Sahnun. Asad, however, refused to do that. As a result, people disregarded Asad’s book and followed the Mudawwanah of Sahnun, despite the fact that (in the Mudawwanah) different problems were (confusingly) lumped together in the various chapters. Therefore, the Mudawwanah was called Mudawwanah-and-Mukhtalitah (the “mixed up, confused one”). The inhabitants of al-Qayrawan concentrated upon the Mudawwanah, whereas the Spaniards concentrated upon the Wadihah and the ‘Utbiyah.
Ibn Abi Zayd, 222 then, made a compendium of the Mudawwanah-and-Mukhtalitah in a book entitled al-Mukhtasar. One of the jurists of al-Qayrawan, Abu Sa’id al-Baradhi’i, 223 also made a compendium of it in a book entitled at-Tahdhib. The shaykhs of Ifriqiyah used the Tahdhib as their textbook. They accepted it and disregarded all other works. In the same way, the Spaniards used the ‘Utbiyah as their textbook and kept away from the Wadihah and other works.
Malikite scholars have never ceased writing commentaries, explanations, and synopses of these main works. The people of Ifrigiyah wrote a good deal on the Mudawwanah. Scholars such as Ibn Yunus, 224 al-Lakhmi, 225 Ibn Muhriz, 226 at-Tunisi, 227 Ibn Bashir, 228 and others, wrote on it. The Spaniards wrote a good deal on the ‘Utbiyah. Scholars such as Ibn Rushd 229 and others wrote on it.
Ibn Abi Zayd collected all the problems, contradictions, and statements from the main works in the Kitab anNawadir. He dealt with all the stated opinions of the school and listed in detail in that book the contents of all the main works. Most of it was taken over by Ibn Yunus into his book on the Mudawwanah.
The Malikite school was very actively cultivated in the two countries (Spain and northwestern Africa), until the dynasties of Cordoba and al-Qayrawan were destroyed. Later on, the Maghribis held on to the (Malikite tradition of the) two (cities).
There 230 are three different schools within the Malikite school:
(1) That of the Qayrawanians. Its founder was Sahnun, who studied with Ibn al-Qasim.
(2) That of the Cordovans. Its founder was Ibn Habib, who studied with Malik, Mutarrif,231 Ibn al-Mijishim, 232 and Asbagh.233
(3) That of the ‘Iraqis. Its founder was Judge Ismail and his companions.
Eventually, there appeared the book of Abu ‘Amr b. alHajib, in which he summarized the various approaches of the Malikite (authorities) to every subject and enumerated their statements on every individual problem. Thus, his work came to be a kind of synopsis of the school.
The Malikite school had been in Egypt since the times of al-Harith b. Miskin, Ibn al-Muyassar, Ibn al-Lahib, Ibn Rashiq, and Ibn Shas. 245 In Alexandria, it was cultivated by the ‘Awf and Sanad families, and by Ibn ‘Ata’llah. 246 I do not know from whom Abu ‘Amr b. al-Hajib 247 got his knowledge of the Malikite school, but he lived after the destruction of the ‘Ubaydid(-Fatimid) dynasty and the disappearance of ‘Alid jurisprudence and after the orthodox Shdf’ite and Malikite jurisprudence had reappeared (in Egypt).
The Egyptian school followed that of the ‘Iraqis. Judge ‘Abd-al-Wahhab moved from Baghdad to Egypt at the end of the fourth [tenth] century, and the Egyptians studied with him. The Malikite school in Egypt had started with al-Harith b. Miskin, Ibn Muyassar,234 Ibn al-Lahib,235 and Ibn Rashiq.236 It had remained under cover because of the appearance of the extremist Shi’ah and ‘Alid jurisprudence.237
The ‘Iraqi school was shunned by the inhabitants of alQayrawan and Spain, because it was far away, its ways of reaching conclusions were obscure, and they knew little about the sources that (the ‘Iraqis) used. Scholars are (basically) men of independent judgment, even when (their opinion) stands apart (and does not agree with the general opinion), and they do not blindly believe in tradition, nor do they like to use it as (their) method. Therefore, we find that the Maghribis and Spaniards do not accept the opinion of the ‘Iraqis, whenever they cannot find a tradition of the imam Malik or one of his companions to support it.
Later on, the various schools merged with each other. In the sixth [twelfth] century, Abu Bakr at-Turtushi 238 traveled from Spain (to the East). He stopped and settled in Jerusalem. The Egyptians and Alexandrians studied with him and took over from him elements of the Spanish school into their own Egyptian school. One of his most important followers was the jurist Sanad, the author of the Tiraz, 239 and his companions. A number of people studied with them. They included the ‘Awf family 240 and their followers. Abu ‘Amr b. al-Hajib studied with them. He was followed by Shihab-ad-din alQarafi. 241 In this way, there was a continuity (of Maliki teaching) in those times.
The Shafi’ite school had also been destroyed in Egypt at the time of the ‘Alid ‘Ubaydid(-Fatimid) 242 dynasty. Later on, the work of the Khurasanian Shafi’ite ar-Rafi’i 243 made its appearance with the jurists who renewed the Shafi’ite school. In Syria, one of the Shafi’ite champions, Muhyi-ad-din an-Nawawi, made his appearance.
Later on, the western school of Malikites also took over elements of the ‘Iraqi school through ash-Shirimsihi. 244 He was outstanding in Alexandria as representative of the Western and Egyptian school. When the ‘Abbasid al-Mustansir, the father of al-Musta’ im and son of az-Zahir, built his college in Baghdad, he asked the ‘Ubaydid(-Fatimid) caliphs, who at that time were in Cairo, to send him ashSharimsahi. They permitted him to go to (al-Mustansir). When he arrived in Baghdad, (al-Mustansir) appointed him professor in the Mustansiriyah College. He remained there until Hulagu took possession of Baghdad in 656 . He escaped the fury of the catastrophe and went free. He remained living there until he died in the days of Hulagu’s son, Ahmad Abagha.
A compendium of the Egyptian school that had taken over elements of the Western school, was made, as we have mentioned,248 in the Mukhtasar of Abu ‘Amr b. al-Hajib, which mentions the different problems of every juridical subject and enumerates the various statements on each individual problem. Thus, it came to be a kind of synopsis of the school.
When his work reached the Maghrib at the end of the seventh [thirteenth] century, the majority of Maghribi students, and especially the inhabitants of Bougie, concentrated upon it. The chief teacher of the people of Bougie, Abu ‘Ali Nasir-ad-din az-Zawawi, 249 had been the one who brought the work of Ibn al-Hajib to the Maghrib. He had studied with (Ibn al-Hajib’s) followers in Egypt, had copied his Mukhtasar, and brought it (to the West). It spread among his pupils in the region of Bougie and was introduced by them into all the other cities of the Maghrib. Contemporary Maghribi students of jurisprudence use and study it, because of the interest the shaykh Nasir-ad-din is said to have aroused in it. A number of Maghribi shaykhs, such as Ibn ‘Abd-asSalim, Ibn Rashid,250 and Ibn Harun,251 commented on it.
All of them are shaykhs of Tunis. Their principal champion in this respect is Ibn ‘Abd-as-Salam. In addition, they use the Kitab at-TahdhIb as textbook in their teaching.
“God guides whomever He wants to guide.” 252
From: The Muqaddimah of Ibn Khaldun